Punjab-Haryana High Court
Sanjay Kumar Kataria vs State Of Haryana on 14 August, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No.337-DB of 2009
Date of Decision:14.8.2012
Sanjay Kumar Kataria ......Appellant
Versus
State of Haryana
......Respondent
CORAM:- HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
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Present: Mr. T.S. Sangha, Sr. Advocate with
Mr. Sandeep Chabbra & Mr. J.S. Lalli, Advocates for the appellant.
Mr. S.S. Patter, Sr. D.A.G. Haryana.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAJIV NARAIN RAINA, J.
This appeal has been filed by Sanjay Kumar Kataria son of Late Sh. Mangal Singh resident of House No.768, Sector-23, Faridabad, Haryana, against the judgment dated 7.2.2009 of the learned Additional Sessions Judge, Faridabad, convicting the accused-appellant under Section 304-B of the Indian Penal Code (for short "IPC") as also against the order of sentence of even date whereby he has been sentenced to undergo imprisonment for life on being found guilty of causing dowry death of his wife Smt. Saroj, besides, imposing fine of Rs.10,000/- and in default of payment of fine to further undergo RI for one year.
The prosecution story is that on 28.12.2006, the police received information over the telephone that Smt. Saroj wife of appellant Sanjay has been admitted to the Escorts Medical Centre, Faridabad for treatment of burn injuries. The patient was, thereafter referred to Safdarjang Hospital, Delhi for further management. The Doctor on duty opined that the patient was not fit to make statement. On 30.12.2006, the police post at Safdarjang Criminal Appeal No.337-DB of 2009 -2- Hospital, Delhi, informed the investigating police that Smt. Saroj had died. On the death of Smt. Saroj, a formal FIR Ex.PE was recorded by SI Narender Kumar later to appear as PW-7 at the trial. The inquest proceedings had earlier been conducted by SDM, Vasant Vihar, New Delhi and after start of investigation proceedings Sub Inspector Narender Kumar proceeded to the spot of occurrence and prepared rough site plan Ex.PE/2 of the place of occurrence. Statements of witnesses were recorded under Section 161 Cr.P.C. Photographs were taken. Scaled site-plan was got prepared. The accused-appellant/Sanjay husband of Smt. Saroj was arrested on 1.1.2007.
On completion of investigation, the final report under Section 173 Cr.P.C. was presented before the Area Magistrate, who committed the case to the Court of Sessions in terms of Section 207 Cr.P.C. by order dated 5.3.2007. The appellant was charge-sheeted under Section 304-B IPC to which he pleaded not guilty and claimed trial. 11 witnesses were examined by the prosecution including Ravi Gera, the brother of the deceased and complainant in the case as PW-2 and Smt. Beena sister of Smt. Saroj (deceased) as PW-3. The medical evidence was produced in terms of the statements of Dr. Rajeev Nayyar and Dr. Yogesh Tyagi appearing as PW-4 and PW-5 respectively. Both the Investigating Officers i.e. ASI Ram Avtar, who partly conducted the investigation and Inspector Narender Kumar, the remaining, were examined as PW-6 and PW-7 respectively. The witnesses supported the case of the prosecution. The medical evidence concluded that death was as a result of burning.
Ravi Gera/PW-2 brother of the deceased got his statement recorded according to which they were two brothers and three sisters of Criminal Appeal No.337-DB of 2009 -3- which the deceased was youngest. The marriage of Smt. Saroj and the appellant was performed in October, 2004, at Faridabad according to Hindu rites and ceremonies and dowry according to status of the family had been given but soon after the marriage and in fact in the first 2-4 months, the appellant started making demands of dowry and this fact according to Ravi Gera was disclosed by his sister Saroj to him and his mother Smt. Laxmi Devi. However, no other member of appellant-Sanjay's family harassed Saroj for dowry. On 28.12.2006, at about 10/10:15 p.m., complainant Ravi Gera received a call on his mobile from his niece Teena d/o Babu Lal that Sanjay "Massad" had burnt Saroj "Massi". On this information, Complainant with his elder brother Rajender and mother rushed to Faridabad from Bharatpur, Rajasthan on 29.12.2006 but found that Saroj had died at Safdarjung Hospital, Delhi. ASI Ram Avtar PW-6 on the basis of the statement of Ravi Gera (PW-2) made detailed endorsement Ex.PD/1 and sent it to the police station for recording of the FIR, which was recorded by SI Narender Kumar (PW-7).
Ravi Gera (PW-2) in his statement while appearing as a witness for the prosecution deposed to the effect that after 2-3 months of marriage, the accused-appellant demanded a ring and then an inverter from Saroj. His elder brother Rajender gave Rs.4000/- to Saroj for purchasing an inverter but her woes did not end as she remained upset for small demands.
Dr. Rajeev Nayyar (PW-4) CMO in Escorts Medical Centre first treated Saroj deposed that the patient was brought to the hospital by her mother-in-law Gian Devi at 8.48 p.m. in burnt condition. On examination, the patient was found conscious but in agony and restless. He found there was singeing of hair on forehead; superficial to deep burns over neck, front Criminal Appeal No.337-DB of 2009 -4- of chest and back; superficial to deep burns over both upper limbs; superficial to deep burns over back of both thighs and both legs at ankle joints with perineum spared. The degree of burns was found to be approximately 60%. Dr. Rajeev Nayyar found no smell of kerosene oil on the body of the patient. The patient was conscious but in agony and did not disclose the cause of burns. He referred the patient to Safdarjung Hospital for further treatment. The medical witness opined from the observation in the MLR indicated LPG burns as the burn area was uniform all over the body.
Dr. Yogesh Tyagi (PW-5) of Sardarjung Hospital, New Delhi, deposed that he conducted the post mortem examination on the dead body of Saroj who was admitted with alleged history of sustaining burn injuries on 28.12.2006 at 8:15 p.m. She was declared dead on 29.12.2006 at 3:10 p.m. Singeing of scalp and body hair was present. He found superficial to deep burn injuries on face, neck, chest, upper abdomen, whole back, both upper limbs except palms, both lower limbs except soles and feet and opined that cause of death was shock due to ante-mortem flame burns involving 90% of total body surface area. The time between the occurrence and the death was approximately 2 days.
The investigating officers ASI Ram Avtar (PW-6) and Inspector Narender Kumar (PW-7) supported the case of the prosecution and deposed that procedure of investigation and recoveries was carried out in accordance with law.
Inspector Narender Kumar (PW-7) deposed in his cross examination that during investigation he was informed that the door of the room on the first floor was broken by family members from the in-laws side Criminal Appeal No.337-DB of 2009 -5- of the deceased. The kitchen was on the first floor. The Investigating Officer stated that there were burn marks on the spot of curtains but did not find presence of any combustible substance at the place of occurrence. He deposed that he inspected the kitchen where the occurrence had taken place but did not find any combustible or suspicious substance.
The remaining evidence is of formal nature and would not detain us as having any significant bearing on the case in appeal.
Be that as it may, the statement of the accused was recorded under Section 313 Cr.P.C. He pleaded innocence and false implication in the case but went on to say in his defence that in fact Saroj had caught fire accidentally in the kitchen due to leakage of gas from the burner and his family members removed her to Escort Hospital and they also informed the family members of Saroj's side of the family regarding this accident.
Apart from making out his defence in his statement under Section 313 Cr.P.C. as above, the accused-appellant led defence evidence. His mother Smt. Gian Devi appeared as DW-1. She deposed that it was a second marriage for both Sanjay and deceased Saroj. At the time of marriage, the family members of the deceased had not shown the divorce papers of Saroj's previous marriage. She deposed that Sanjay and Saroj resided on the upper storey of House No.762, Sector-23, Faridabad whereas another son Raman and his family members resided on the ground floor of the same house. She stated that at the time of occurrence, she was residing with her 3rd son in a house nearby. She stated that she was informed that there was fire on the first floor by the wife of her son Raman over the telephone. At the time of occurrence, accused-appellant was away to Delhi to purchase goods for the shop he ran. When she reached the place of Criminal Appeal No.337-DB of 2009 -6- occurrence, she found numerous people gathered some of whom were breaking the door and some were breaking windows. Saroj was taken out of the room on the first floor by wrapping a blanket around her. Saroj was wearing a silken suit at that time. Saroj was apparently conscious. The neighbours arranged a vehicle and Saroj was evacuated to NIMS Hospital which was not equipped to deal with burn cases so was taken to Escorts Hospital Faridabad where she was admitted. After which the patient was referred to Delhi for specialized treatment. She deposed that she had accompanied Saroj with her son Raman, her brother Ram Chand in the Ambulance. They informed the sisters of Saroj of the ill happening over the telephone who reached Escort Hospital. She deposed that accused Sanjay who had been away in the night of 28.12.2006 came to hospital and stayed there till the body was released. Family members of Saroj did not make any complaint to anybody. The dead body was brought back to the matrimonial home and taking to the cremation ground where funeral pyre was lit by the accused-appellant. Members of the family of the Saroj were present at the time of consigning the body to flames and later at the time of "Chauth" ceremony on 2.1.2007 in a Gurdwara of Sector 22, Faridabad and even then no complaint was made of any kind. It is only after performing the "Chauth" ceremony that accused Sanjay was arrested.
Prem Sharma (DW-2) neighbour of the appellant deposed that he noticed smoke emitting from the upper storey of the house of the appellant. He deposed that he broke the door open with a big hammer and found Saroj lying burnt from her lower portion. He wrapped a blanket lying in the room around Saroj and with the help of others brought her downstairs. He deposed that he had not noticed any quarrel between Sanjay Criminal Appeal No.337-DB of 2009 -7- and Saroj at any time as a neighbour. He had not heard Sanjay making demand of dowry from Saroj. He deposed that when he broke open the door, he had a brief word with Saroj who told she was lighting a candle and due to darkness, the match stick touched her suit which caught fire. However, at the time when he entered the room, the light had come. He noticed a candle lying on the side. He did not know about the second marriage of the both.
The appellant also produced Ram Chand as DW-3, who is his maternal uncle. He deposed that there was no dispute between the couple. He deposed that he was a neighbour as well of both. He participated with DW-2 Prem Sharma in breaking open the bolt of the door. On breaking the door, they noticed that Saroj was on fire. A blanket was lying beside her which was placed on her. DW-3 deposed to the same effect as Prem Sharma (DW-2) that the fire was caused by an accident resulting from a match stick.
We find that the present is a case of circumstantial evidence. There is no eye witness. The death has occurred within 7 years of marriage raising a presumption under Section 113-B of the Evidence Act. No needle has been pointed in so far as demand of dowry is concerned to any other member of the family of the accused-appellant. Whether the previous marriage of the Saroj has been dissolved by a decree or not is not material since the couple lived together as husband and wife and were accepted as such by both sides of the family. It also cannot be disputed that death of Saroj was not natural. She died on account of shock due to ante-mortem flame burns involving 90% of total body surface area as per post mortem report Ex.PC. The possibility of death by burning as a result of leakage of LPG gas could not be ruled out. There is no probative evidence of death Criminal Appeal No.337-DB of 2009 -8- caused by fire lit accidentally by a match stick. If accused had set up plea of alibi as defence it was for him to prove and show that he was not present at the time of occurrence. The burn injuries were sustained in the matrimonial home. We have no reason to disbelieve the statements of the family members of the deceased that there was dowry demand, however small in the shape of ring and an inverter but the defence taken by the accused in his statement under Section 313 Cr.P.C. precludes us from giving him a clean chit. The answers by an accused under Section 313 Cr.P.C. are of relevance for finding of the truth and examining the veracity of the case of the prosecution. Though the statement is not strictly evidence in the case but the provisions of Section 313(4) Cr.P.C. provide that answers given by the accused can be taken into consideration at the trial. The defence of the appellant in his 313 Cr.P.C. statement does not lend credence to the story of alibi set up in the defence evidence. We would accept that the accused was present at the time of occurrence as being beyond any reasonable doubt.
We have heard Mr. T.S. Sangha, learned senior counsel for the appellant, and Mr. S.S. Patter, Sr. D.A.G. Haryana for the State.
Mr. Sangha would submit that it is not possible to discern the workings of a mind which may lead a person to commit suicide. In a case of circumstantial evidence of this kind where there are no eye witnesses, the totality of circumstances would suggest that it was not a case of homicide or a case of dowry death and merely because there is a presumption under Section 113-B of the Evidence Act that should alone not be sufficient to bring home the guilt of the appellant. He would submit that the evidence of dowry demand is weak in the present case in quantum and in point of time measured from the time of death and that this is a case for acquittal. He Criminal Appeal No.337-DB of 2009 -9- further submits that looking to the fact it was a second marriage for both Saroj and Sanjay, there would normally have reconciled themselves to the low key of a second marriage and little expectations and in such circumstances normally the issue of demand of dowry would remain in the deep back ground. In any case, the demand of ring and an inverter is not sufficient according to the learned counsel to give it the full bloom of a demand of dowry within the meaning of Section 498-A and Section 304-B of the IPC.
Mr. S.S. Patter, would contend that the plea of alibi is not sustainable. There is sufficient evidence of demand of dowry, the impact of which cannot be separated from the circumstances which led to the death of Saroj. Merely because the room had to be broken open does not prove a case of suicide ipso-facto. In any case, the presumption under Section 113- B can be used for conviction provided the chain of events are such which will bring home the guilt of the accused.
The scope and ambit of Section 313 Cr.P.C. has been delineated in Sanatan Naskar and another v. State of West Bengal (2010) 8 SCC 249. Paras 21, 22 and 23 of the judgment reads as under:
"21. The answers by an accused under Section 313 Cr.P.C are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 CrPC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by the judgments which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 CrPC.Criminal Appeal No.337-DB of 2009 -10-
22. As already noticed, the object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and, besides ensuring the compliance therewith, the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders as may be called for in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained Criminal Appeal No.337-DB of 2009 -11- this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) CrPC explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."
Following the above principles, we are unable to conclude in the present case that the chain of events as forthcoming from the evidence on record are not consistent with the guilt of the accused as we find ourselves in agreement with the prosecution case especially when the defence plea of alibi in the statement under Section 313 Cr PC does not stand established.
On having given our thoughtful consideration to the issue of sentence of life awarded by the Additional Sessions Judge, Faridabad we Criminal Appeal No.337-DB of 2009 -12- think that award of life sentence and of fine of Rs.10000/- may be excessive in the totality of the facts and circumstances of this case and would, therefore, modify the sentence as imprisonment for 7 years. We feel that there are some mitigating circumstances which keep us back from imposing life imprisonment. Both the appellant and deceased were re-married. The appellant's second marriage also ran into rough weather. He has been behind bars for a considerable length of time and must have realized the consequences of his actions. His business must have suffered as well. He also does not seem to us to be a threat to society at large if returned to freedom with the imposition of the minimum punishment prescribed by law. We would, however, award compensation of Rs.1,00,000/- to be paid by the appellant to the mother of the victim Saroj for causing unnatural death of his wife Saroj and in default of payment of which, the appellant would further undergo RI for one year.
The appeal is partly allowed and the sentence is reduced as aforesaid.
( HEMANT GUPTA ) ( RAJIV NARAIN RAINA )
JUDGE JUDGE
14.8.2012
rajeev